Bain reports released

Justice Ian Binnie accepted David Bain's version of
events surrounding the murder of his family without question,
except where it was directly contradicted by other witnesses,
Justice Minister Judith Collins said today in criticising
Justice Binnie's report for compensation for wrongful
imprisonment.

And instead of requiring Mr Bain to satisfy the judge he was
innocent, Mr Binnie imposed an onus on the Crown whenever the
Crown suggested facts inconsistent with Mr Bain's innocence.

He therefore skewed the findings towards innocence, Ms
Collins said.

The minister today released the report written by Mr Binnie,
a retired Supreme Court judge of Canada, and the highly
critical peer review by former High Court judge Robert
Fisher.

At issue is whether David Bain - who was acquitted in 2009
for murdering his family in 1994 - should be compensated for
wrongful imprisonment.

Dr Fisher's report said "logic and experience suggest that if
a suspect has lied in denying his responsibility for the
crime itself, he will scarcely shrink from lying about the
details.

"For the purposes of drawing inference from surround facts,
most decision-makers will prefer sources other than the
suspect.''

Ms Collins also released Mr Binnie's highly critical response
to Dr Fisher's review which was emailed to Ms Collins office
this morning.

He says Dr Fisher's complaints are "academic and theoretical
and indicate little familiarity of the case.''

Mr Binnie also makes reference to the Herald story of
September 10 saying that Mr Binnie's confidential report
recommended compensation and suggests he has been blamed for
a leak.

"What is particularly galling in Mr Fisher's commentary is
reference to 'the well publicised recommendation that
compensation be paid','' Mr Binnie said in his email to Ms
Collins.

"At the time this 'publicity' appeared in the New Zealand
press, the only people who had my report were the ministry
and myself. If the leak occurred, it had nothing to do with
me.''

At a press conference today Ms Collins, referring to Dr
Fisher's report, said the errors in Mr Binnie's report were
extensive and serious.

• Items of evidence that did not prove a subsidiary fact on
the balance of probabilities were disregarded, which meant
important evidence like blood stains on Mr Bain's clothing
and broken glasses were excluded.

• Justice Binnie regarded the acquittal as something
that was relevant to whether Mr Bain had proved his
innocence.

• An acceptance of Bain's version of events without
question, except where it directly contradicted other
witnesses.

• Justice Binnie arrived at a provisional conclusion of
innocence based on one item (luminol footprints), followed by
a serial testing of that conclusion, instead of considering
the cumulative effect of all evidence - an approach Ms
Collins said skewed the findings towards innocence.

• Justice Binnie's approach was generous to Mr Bain in
its reliance on background facts sourced from him.

• Instead of requiring Mr Bain to satisfy him on the
balance of probabilities, Justice Binnie imposed an onus on
the Crown whenever the Crown suggested a factual possibility
inconsistent with Mr Bain's innocence.

• He relied on innocent openness' defences to turn
incriminating admissions or clues into points thought to
support Mr Bain's genuineness and credibility.

• Going beyond his mandate, Mr Binnie did not have
authority to conclude whether there were extraordinary
circumstances, or make a recommendation on whether
compensation should be paid.

• Instead of founding conclusions on the evidence
available to him, Justice Binnie drew an adverse inference to
the Crown where, in his view, the police ought to have gone
further in their investigations.

• In finding serious wrongdoings by authorities, Justice
Binnie paid no regard for the need for an official admission
or judicial finding of misconduct, and treated as 'serious
misconduct' actions that were not deliberate, not done in bad
faith.

• Justice Binnie criticised named individuals without
giving them the right to respond.

Police say they do not accept Justice Binnie's opinion that
the police investigation contained egregious errors.

''The Dunedin police were experienced officers,'' a statement
says. "They had dealt with the Aramoana tragedy in which 13
adults and children were shot and killed, and had
investigated two other familial homicides in close proximity
to the Bain murders.

"This was a multiple homicide with a difficult scene. Reviews
of that 1994 investigation found it was conducted in
accordance with the standards or the day and without fear or
favour.''

The statement acknowledged that some errors were made in the
investigation, all of which had been thoroughly traversed by
the courts.

"This is one of the most scrutinised police investigations
and cases in New Zealand. It has been through two high
courts, two courts of appeal and the Privy Council.

"No new points were raised by Justice Binnie that haven't
already been extensively debated through the court process.''

In regard to Justice Binnie's opinion that police had failed
to investigate the possibility of innocence, the statement
said: "Police investigators work on the weight of evidence.
As the investigation progressed, the weight of evidence
pointed to David as the killer. That evidence was put before
the court.''

- by Audrey Young of The New Zealand Herald

THE STORY SO FAR

- June 20, 1994: Five Bain family members shot to death at 65
Every St, Dunedin: Robin, 58; Margaret, 50; Arawa, 19;
Laniet, 18; Stephen, 14.
- May 1995: David Cullen Bain found guilty of murder on five
counts. Sentenced to life imprisonment with 16-year
minimum.
- December 1995: Court of Appeal dismisses appeal.
- April 1996: A petition to appeal to the Privy Council was
dismissed.
- December 2000: Governor General refers six questions to the
Court of Appeal following application by Bain to the Governor
General for the exercise of mercy (a pardon) and the court
considers there could have been a miscarriage of
justice.
- February 2003: Governor-General refers convictions back to
the Court of Appeal, case heard in September and dismissed in
December 2003.
- June 2006: Privy Council gives leave to appeal
convictions.
- May 2007: Privy Council quashes convictions and orders
retrial after hearings in March 2007.
- June 2009: Bain acquitted in retrial in Christchurch after
almost 13 years in prison.
- March 2010: Bain lodges application for compensation fro
wrongful imprisonment.
- November 2011: Then Justice Minister Simon Power appoints
former Supreme Court judge of Canada Ian Binnie to assess
claim.
- September 2012: Justice Binnie delivers report to new
Justice Minister Judith Collins.
- September 2012: Collins sends Binnie report to former NZ
High court Judge Robert Fisher for peer review.
- December 2012: Collins publicly criticises Binnie report
for errors and misunderstanding of New Zealand law. Binnie
complains about an improper process and Collins releases both
reports.